Mom charged in beating of her tot retains life-and-death power

A New Brighton mother, Marlene Medina, is charged with beating her 20-month-old daughter into a near-death state -- yet she still has the right to make life-or-death decisions about her daughter's medical care.

"Only a parent or guardian can consent to a 'do not resuscitate' order," said Sheila Stainback, a spokeswoman for the city Administration for Children's Services. "These parents' rights have not been terminated."

Hailey Gonzalez, the toddler whose lung collapsed and brain swelled after she was beaten on Tuesday, is not expected to survive her injuries. She's in critical condition in Richmond University Medical Center, West Brighton.

Marlene Medina, Hailey's mother, and Ms. Medina's boyfriend, Edwin Garcia, have been charged with assaulting the little girl in their New Brighton apartment; Hailey's father, Manuel Gonzalez, was jailed in February for beating her previously.

It may seem inherently wrong for parents to hold sway over their children's lives after they have routinely imperiled them. But officials often struggle to strike a balance between honoring the bonds of family and ensuring a child's protection.

It would take a court decision for the city to assume ultimate authority over Hailey's medical care -- a scenario that's not without precedent.

A strikingly similar case in Massachusetts involved a ruling in that state's highest court last year that gave the Department of Social Services the authority to take a badly beaten 11-year-old victim off life support.

In that highly publicized case, Haleigh Poutre's doctors said the girl would never regain consciousness. Her adoptive mother, charged in the beating, died two weeks later in an apparent murder-suicide; the girl's stepfather, who also was charged, unsuccessfully fought the court's decision to end Haleigh's life.

Lawyers in the Poutre case raised the question of whether the state was acting to hasten the girl's death because of the high cost of life support, while opposing attorneys stressed that the stepfather had a vested interest in the ruling because he could face murder charges in the event of Haleigh's death. The DSS commissioner was fired after he was criticized for his handling of the case: Just after the court ruled for Haleigh's "right to die," her health suddenly improved. The girl, who did not fully recover, is now 13.

The Gonzalez case could give rise to a similar battle, one in which the guardians of the child, albeit responsible for her injuries, could need to fight for their right to keep her alive. The Administration for Children's Services and its commissioner, John B. Mattingly, also have come under fire since the city's Department of Investigation reported Thursday that 10 children had died as a result of bungled investigations since the end of 2005.

While citywide media reported yesterday that doctors were considering whether the decision to end Hailey's life support should fall to the ACS, law experts said that only a judge would make that determination.

"Can you imagine the uproar there would be, in light of the troubles the ACS has had with the Department of Investigation, if the ACS decided to go to court to get a judge to no longer keep a child alive through the resuscitation process?" asked former Staten Island Family Court Judge Ralph J. Porzio, now a lawyer in private practice.

The hospital can play a role in bringing such a life-or-death decision to court. But a parent's wish to keep a child alive would still have weight in a judicial hearing.

In extraordinary cases, the state can strip abusers of their parental rights through a lengthy legal process.

"That might take about 15 to 18 months," said Ms. Stainback. "[In that case], the government can act in the best interest of the child in consultation with the court. ... We're not at that point right now."

A spokesman for Richmond University Medical Center declined to comment.